Law of Wills, 2016A

County Commission entered an order ruling that according to the Decedent’s Will, she left “all her
tangible personal property to Cathy Cyfers and all of the remainder of her personal property,
including the proceeds from the sale of her home ... to those people listed in Exhibit ‘A’ attached to
the Will.” The County Commission further determined that the co-executors had failed to
administer the Decedent’s estate as set out in her Will and that the co-executors had contested the
validity of the Will, which placed them in conflict with the heirs to the Decedent’s estate and with
the Decedent’s wishes. Consequently, the County Commission revoked the appointment of Mr.
Vallandingham and Mrs. Cyfers as co-executors of the Decedent’s estate and appointed the Sheriff
of Cabell County to serve as executor.
The declaratory judgment action proceeded in circuit court. The parties submitted cross-motions for
summary judgment. By letter dated September 26, 2011, the circuit court initially granted the coexecutors’
motion, concluding that Exhibit A was not validly incorporated by reference into the Will
under West Virginia law and directed the co-executors to prepare an order reflecting that ruling.
On January 12, 2012, the co-executors submitted an order as directed by the circuit court. On
January 17, 2012, the respondent beneficiaries filed an objection to the proposed order and filed a
motion for reconsideration. By order entered September 18, 2012, the circuit court granted the
respondents motion for reconsideration and set the matter for trial on October 9, 2012.
On October 9, 2012, the parties appeared for trial. At that time the circuit court inquired of the
parties if they wished to have the circuit court rule on renewed motions for summary judgment. The
parties agreed that the issues could be resolved by the pending summary judgment motions, thereby
waiving their right to a jury trial in favor of a ruling by the circuit court as a matter of law.
By order entered November 28, 2012, the circuit court granted summary judgment in favor of the
Respondent beneficiaries under the Decedent’s Will. The circuit court concluded that Exhibit A was
properly incorporated by reference into the Decedent’s Will. More precisely, the circuit court, in
relevant part, determined that “‘Exhibit A’ (a) is repeatedly referenced in the Will; (b) is attached to
the Will; [and] (c) is written in the Testator’s handwriting [ ]....” Regarding only the handwritten
notations found on the Will and Exhibit A that were clearly made after the date the Will was
executed, the circuit court determined that “all of the disputed notations with dates after the Will
was executed are surplusage and can be disregarded as the remainder of the Will is more than
adequate to express ... [the Decedent’s] intent and to dispose of her property.” Finally, after
concluding that the handwritten notations on the Will itself and the single handwritten notation
containing a post-execution date on Exhibit A were surplusage and were to be disregarded, the trial
court found that “there is nothing to indicate that the Will together with Exhibit A do not
adequately and accurately reflect how ... [the Decedent] intended her Estate to be divided upon her
death.”
On appeal, the Petitioners argue that the circuit court erred: 1) in concluding that Exhibit A to the
Will was properly incorporated by reference into the Will; 2) in concluding that the handwritten
notations contained within Exhibit A clearly made after the date that the Will was executed are
surplusage and were to be disregarded; and 3) by considering the Decedent’s intent with respect to
whether Exhibit A was properly incorporated by reference into the Will. Based upon a review of the
parties’ briefs and oral arguments, the appendix record, and both parties’ agreement that the issues
were susceptible to resolution by summary judgment, we conclude there was no other material
evidence available and therefore insufficient evidence to allow Exhibit A to be incorporated by
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